Less emphasis should be placed on the state of mind of an individual decision maker in cases of unfair dismissal, says Charles Pigott
It has always been regarded as a key ingredient of procedural fairness that the decision to dismiss must be that of the dismissing officer, not least because the employee should be given the opportunity to influence the final decision at the disciplinary hearing. It is also accepted that managers making disciplinary decisions frequently need to take advice, whether from their internal human resources (HR) department or from external experts. But at what point does legitimate advice stray into unjustified interference with the decision-making process?
This issue is not addressed directly in the ACAS Code of Practice on Disciplinary and Grievance Procedures. The more extensive ACAS Guide on Discipline and Grievances at Work includes only two mentions. It recommends that if guidance is needed advice should be sought from someone who will not be involved in any potential appeal or from the ACAS helpline. Later on it has a small section
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